Kerala High Court
Santhosh vs State Of Kerala on 25 October, 2024
Crl.A.No.130 of 2016
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
FRIDAY, THE 25TH DAY OF OCTOBER 2024 / 3RD KARTHIKA, 1946
CRL.A NO. 130 OF 2016
AGAINST THE JUDGMENT DATED 28.01.2016 IN SC NO.1246 OF
2014 OF ADDITIONAL SESSIONS COURT-I (SPECIAL COURT FOR TRIAL OF
OFFENCES AGAINST CHILDREN) THIRUVANANTHAPURAM.
(CRIME NO.25/2013 OF FORT POLICE STATION)
APPELLANT/ACCUSED:
SANTHOSH,
AGED 27 YEARS,
S/O.SUKUMARAN NAIR, PARAMBU VILAKATH VEEDU,
TC 64/1391, KANNANCODE, KARUMAM,
MELAMCODE WARD, NEMOM VILLAGE, THIRUVANANTHAPURAM.
BY ADVS.
SRI.D.KISHORE
SMT.MINI GOPINATH
SMT.MEERA GOPINATH
SRI.R.MURALEEKRISHNAN MALAKKARA
RESPONDENTS/STATE & COMPLAINANT:
1 STATE OF KERALA,
REPRESENTED BY ITS PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM- 682 031.
2 THE SUB INSPECTOR OF POLICE,
FORT POLICE STATION, THIRUVANANTHAPURAM - 695 001.
BY ADV.SMT.SHEEBA THOMAS, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING ON
16.10.2024, THE COURT ON 25.10.2024 DELIVERED THE FOLLOWING:
Crl.A.No.130 of 2016
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C.S.SUDHA, J.
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Criminal Appeal No.130 of 2016
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Dated this the 25th day of October 2024
JUDGMENT
In this appeal filed under Section 374(2) Cr.P.C., the
appellant who is the accused in S.C.No.1246/2014 on the file of the
Court of Session, Thiruvananthapuram, challenges the conviction
entered and sentence passed against him for the offence punishable
under Section 7 read with Section 8 of the Protection of Children from
Sexual Offences Act, 2012 (the PoCSO Act).
2. The prosecution case is that the accused on 05/01/2013 at
03:00 p.m. lifted the frock worn by PW4 a minor girl aged 9 years,
showed his erected penis to PW4 and hugged her. As per the final
report, the accused is alleged to have committed the offence
punishable under Section 511 of 376 IPC.
3. On the basis of Ext.P2 FIS given by PW2, the father of
PW4 the victim girl, crime No.25/2013 of Fort police station, that is,
Ext.P2(a) FIR was registered by PW7 the then Sub Inspector, Fort
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police station. PW7 conducted the investigation and on completion of
investigation, submitted the charge sheet before the jurisdictional
magistrate, alleging commission of the offence punishable under the
aforementioned Section. The magistrate after complying with the
necessary formalities contemplated under Section 207 Cr.P.C.,
committed the case to the Court of Session, Thiruvananthapuram.
Thereafter, the case was made over to the Additional Sessions Judge-
I for trial and disposal.
4. After appearance of the accused before the trial
court, on 13/10/2015 a charge under Section 511 of 376 IPC and
Section 7 read with Section 8 of the PoCSO Act was framed, read
over and explained to the accused to which he pleaded not guilty.
5. On behalf of the prosecution, PW1 to PW7 were
examined and Exts.P1 to P8 were got marked in support of the case.
After the close of the prosecution evidence, the accused was
questioned under Section 313(1)(b) Cr.P.C. with regard to the
incriminating circumstances appearing against him in the evidence of
the prosecution. The accused denied all those circumstances and
maintained his innocence.
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6. As the trial court did not find it a fit case to acquit
the accused under Section 232 Cr.P.C., he was asked to enter on his
defence and adduce evidence in support thereof. No oral or
documentary evidence was adduced by the accused.
7. On a consideration of the oral and documentary
evidence and after hearing both sides, the trial court by the impugned
judgment acquitted the accused under Section 235(1) Cr.P.C. for the
offence punishable under Section 511 of 376 IPC. However, he has
been found guilty for the offence punishable under Section 8 of the
PoCSO Act and hence has been sentenced to undergo rigorous
imprisonment for four years and to a fine of ₹5,000/- and in default of
payment, to rigorous imprisonment for one year. Set off under Section
428 Cr.P.C. has been allowed. Aggrieved, the accused has come up
in appeal.
8. The only point that arises for consideration in this
appeal is whether the conviction entered and sentence passed against
the accused by the trial court is sustainable or not.
9. Heard both sides.
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10. It was submitted by the learned counsel for the
accused/appellant that the evidence on record is unsatisfactory to find
the accused guilty of the offence punishable under Section 8 of the
PoCSO Act beyond reasonable doubt. There are inconsistencies in the
testimony of the witnesses and hence the accused is entitled to the
benefit of doubt. Per contra, it was submitted by the learned Public
Prosecutor that on a whole reading of the testimony of PW2, PW3 and
PW4, the offence under Section 8 of the PoCSO Act is clearly made
out and hence no grounds for interference have been made out.
11. I briefly refer to the evidence on record relied on by
the prosecution in support of the case. Ext.P1, the FIS given by PW2,
the father of PW4, the victim girl, is seen recorded on 05/01/2013 at
05:30 p.m. In Ext.P1, PW2 states that from 04/01/2013 onwards the
roof work of the second floor of his residential building was going on.
The work had been entrusted to PW5, a contractor, and the accused
was one of his workers. On 05/01/2013, his wife and sister had gone
to attend an examination. He had gone out for work. By 04:45 p.m.,
his mother (PW3) called him over the phone and asked him to return
home forthwith. His sister then spoke to him over the phone and
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informed him that the accused by about 03:00 p.m. had come
downstairs and asked for drinking water. While his mother went inside
the kitchen to fetch water, the accused lifted the frock of his daughter
(PW4), undressed himself and exhibited his penis to PW4. When he
returned home, he found PW4 crying, and she told him everything.
His mother told him that when she returned from the kitchen with
water, she saw the accused holding PW4 close to him. On seeing his
mother, the accused let go of his daughter and ran away.
11.1. PW2 when examined does not fully stand by the
version given in Ext.P1 FIS. He deposed that he had not stated to the
police that the accused had undressed and exhibited himself to his
daughter.
11.2. PW3, the mother of PW2 and grandmother of PW4
the victim child, deposed that on the said day, she along with her
granddaughter were watching T.V. The accused came and asked for
cold water. She went inside the kitchen to fetch water, during which
time PW4 was sitting in the living room. When she returned from the
kitchen, PW4 was found crying and came running and
embraced/hugged her. PW4 told her that the accused had tried to lift
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her frock and draw her towards him. The accused took the water from
her and left without saying anything. Half an hour later, when her
daughter returned home, PW4 was still crying and insisting on seeing
her father. PW3 denied having stated to the police that when she
returned from the kitchen, she saw the accused exhibiting himself to
PW4 and that the accused ran away when she questioned him. At this
juncture, the prosecutor sought the permission of the Court under
Section 154 of the Evidence Act read with proviso to Section 162
Cr.P.C., to put questions as put in the cross examination, for which
permission was granted. When examined further, PW3 deposed that if
there was any delay on her part in returning, she feared that something
untoward would have happened. There was no necessity for the
accused who came asking for water to lift the skirt of PW4. PW3 also
deposed that it was considering the future of her grandchild, she does
not want to reveal before the Court all what she saw on the date of the
incident, lest it adversely affect the mental condition of her grandchild.
The incident caused great trauma to the child. The child took quite a
long time to recover from the same. In the cross examination a
suggestion was put to PW3- "പ ത കട യ ട സയ ഹയ ടട
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ട രമ റ തട ടതറ ദര ച റ നതട ? (Q) സയ ഹ ക ണ ക ൻ
ഉട പ ട ട യകണ ക ര"മ യ " (A). This translated would mean-
'Are you not deposing under a mistaken belief /impression when the
accused had behaved affectionately to the child' (Q), to which PW3
answered - 'You don't have to lift the dress to show love. (A)'. PW3
denied the suggestion that the child under a misunderstanding had said
that the accused had tried to lift her frock. PW3 reiterated that the
accused held the hand of PW4 and lifted her frock. PW3 also denied
the suggestion that PW4 became frightened on being asked her name
and hence had come running to her.
11.3. PW4 the victim child deposed that when her
grandmother went inside to take water the accused caught hold of her.
She then pushed him aside. (അയപ ൾ ഇ ൾ എടന ക റ ട ച.
അയപ ൾ ഞ ൻ അ ട( തള ട ). By then her grandmother returned.
She cried out aloud and when she pushed the accused, he moved
backward. PW4 further deposed that apart from this she cannot
recollect anything else. On the date of the incident, she had revealed
everything to her grandmother. According to her - " ഇ ൾ ക റ
ട ചയപ ൾ എ ക വ ടത ഒര മ ത ര യത ന ." (I felt quite
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uncomfortable when he grabbed me.). In the cross examination PW4 was
asked- "അചൻ ടകട പ ട ക നത യ ട- ട ഇ ൾ ടകട പ ട ചത (Q)
യ. ഒര stranger ട/യ1യപ ൾ എ കങട യത ന ത (A ) യമ ൾ
ടതറ ദര ചതയ (Q ) അ (A ) ഇ ൾ എൻട യമ ശമ ട രമ റയ
എടന ക ഓർമ ക ൻ കഴ ന ." (Was it not a paternal hug that
was given (Q). I didn't feel that way when a stranger did it. (A) Is that not
a misunderstanding (Q) No (A) I cannot recollect whether he had
misbehaved). In the light of the statements given by PW4 in the cross
examination, it appears that the prosecutor tried to clarify the same in
the re-examination. The re-examination of PW4 reads: "I am not
interested to examine the past feelings. ആ past incident ഇയപ ഴ ugly ആ ട
തടന ണഎ ക യത ന നത . I don't wish to remember that."
12. The testimony of PW2 and PW3 makes it clear that
they are not ready to divulge all what took place fearing the future of
their daughter. Therefore, the entire story narrated in Ext.P1 FIS has
not been established. However, the evidence makes it clear that the
accused lifted the frock of PW4 and tried to draw her close to him. It
was submitted by the learned counsel for the accused/appellant that for
an offence under Section 7 of the PoCSO Act, sexual intent must be
proved. In this case there was no sexual intent on the part of the
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accused. On the other hand, an affectionate gesture of the accused was
misunderstood by the child.
13. Section 7 of the PoCSO Act which defines sexual
assault says that when any person with sexual intent, touches the
vagina, penis, anus or breast of the child or makes the child touch the
vagina, penis, anus or breast of such person or any other person, or
does any other act with sexual intent which involves physical contact
without penetration is said to commit sexual assault. The latter part of
the section says that if he does any act with sexual intent which
involves physical contact without penetration is also sexual assault. As
rightly responded by PW3, the grandmother, if the intention of the
accused was affectionate, what was the necessity to lift the dress PW4
was wearing? There is absolutely no reason why a false case should be
foisted against the accused by the prosecution witnesses. The accused
and witnesses are complete strangers and hence no reasons for enmity
exist between them to implicate him in a false case. Therefore, I find
no reasons to disbelieve them regarding the extent of facts deposed by
them, though they do not fully support the prosecution case. So, what
are the facts deposed by them? At the risk of repetition, I refer to them
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once again. PW2, the father, deposed that his mother had told him that
when she returned from the kitchen, she saw the accused holding PW4
close to him. PW2 as well as PW3 denied having stated to the police
that the accused on the said day had undressed and exhibited himself.
PW3 also declined to disclose in court the entire events that had
happened on the said day fearing the future of the girl child. When
PW2 and PW3 denied the act of the accused exposing or exhibiting
himself, the prosecutor with the permission of the Court did put
questions to them as put in cross-examination. PW2, when further
examined deposed that he found it difficult to ask his child things
beyond a limit and that it may have been difficult for his mother as
well to reveal more details to him. (ക ഞ യ ട ഒര രധ വട
ക ര"ങൾ യ/ ദ ചറ ൻ എ ക ബദ മട ണ ര ന . അമ ടട
ഭ ഗ ക@ട തൽ ക ര"ങൾ എയന ട റ ൻ പ സ
യത ന ടണ രക ). In the cross-examination PW2 deposed that
accused had affectionately hugged/embraced the child. (പ ത
വ ത-"യ ടട ക ഞ ട ടകട ട കക ണ ട/യ1ത) . It is true that
the testimony of PW3 that she was informed about the incident by
PW4 immediately after the incident would be res gestae as
contemplated under Section 6 of the Evidence Act. However, PW4 the
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child refused to divulge/ reveal the overt acts of the accused. Her
testimony makes it clear that she does not want to recall the incident
and re-live the trauma she had experienced. But unless the witness
divulges the over acts of the accused, the court cannot reach a
conclusion regarding the guilt of the accused and the offence
committed by him. The testimony of PW3 is only that the accused
lifted the dress worn by PW4. What is the offence made out by that act
of the accused?
14. Here I refer to Section 18 of the PoCSO Act which
says that whoever attempts to commit any offence punishable under
this Act or to cause such an offence to be committed, and in such
attempt, does any act towards the commission of the offence, shall be
punished with imprisonment of any description provided for the
offence, for a term which may extend to one half of the imprisonment
for life or, as the case may be, one-half of the longest term of
imprisonment provided for that offence or with fine or with both.
PW3 deposed had she been late in returning from the kitchen,
something serious would have occurred. This statement coupled with
her testimony that the accused did lift the frock of PW4, it appears to
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be a case of attempt to commit sexual assault as contemplated under
Section 18 PoCSO Act. Hence, the finding of the trial court that the
offence under Section 7 of the PoCSO Act has been made out is liable
to be interfered with. The accused is found guilty of an attempt to
commit the offence of sexual assault as contemplated under Section 18
r/w Section 7 of the PoCSO Act.
15. As per the final report, the accused at the time of the
incident in the year 2013 was 25 years old. The prosecution has no
case that he has any criminal antecedents. Hence, in the facts and
circumstances of the case, the interest of justice would be served by
sentencing him to imprisonment till the rising of the court and to
compensation of ₹25,000/- to be paid to PW4 under Section 357(3)
CrPC and in default to simple imprisonment for 3 months.
In the result, the criminal appeal is partly allowed to the
aforesaid extent.
Interlocutory applications, if any pending, shall stand closed.
Sd/-
C.S.SUDHA
JUDGE
ak
